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ELCDismissedPlaintiffs' notice of motion dated 4th April, 2019· [2021] KEELC 4237 (KLR)

Joshua Ngugi Kaguthi & 3 others v New Gatundu Mixed Farmers Co Ltd [2021] KEELC 4237 (KLR)

Environment and Land Court
18 February 2021
YAY.M. ANGIMA
1,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed landowners' injunction bid because the land had already been subdivided and allocated, and they waited too long to sue.

What this practically means

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Executive summary

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The Plaintiffs, members of a land buying company registered under the Companies Act (Cap. 486), sued the Defendant claiming that the subdivision, distribution and allocation of parcels Nyandarua/Sabugo/251, 214, 116 and 90 was illegal and void ab initio. Alongside the plaint they moved the court by notice of motion dated 4th April, 2019 seeking a temporary injunction restraining the Defendant from dealing with the suit parcels and an order suspending any resultant subdivisions or title deeds, contending they had occupied the land since 1963 and feared eviction and alienation. The Defendant, through grounds of opposition and a replying affidavit sworn by its chairman George Waithaka Kange'the, responded that the parcels had been subdivided and allocated to members in 2017, that the Plaintiffs themselves were each allocated two acres and took possession, and that parcel No. 90 had been transferred to Mutirithia Holdings Ltd at the Plaintiffs' instance. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao v First American Bank, the court held the Plaintiffs had not demonstrated a prima facie case with probability of success: they did not controvert the Defendant's averments, their own plaint sought to undo completed transactions, and an injunction would be ineffectual against events already taken place. The court also noted the non-joinder of allocated shareholders, which would offend natural justice, and the Plaintiffs' unexplained delay in moving the court. The second and third Giella principles did not fall for consideration. The notice of motion was dismissed in its entirety with costs to the Defendant, costs following the event under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for interim injunction

Holding

They did not; the material showed the subdivision and allocation had already occurred and the Plaintiffs participated and took possession

Reasoning

The court applied Giella v Cassman Brown. The Plaintiffs filed no supplementary affidavit to controvert the Defendant's averments that the properties were subdivided and allocated in 2017, that the Plaintiffs were each allocated two acres and took possession. Their own plaint sought to undo completed events, so an injunction would be ineffectual. Non-joinder of allocated shareholders also weighed against interim orders.

p. 3
02

Whether failure to move promptly disentitles a party to equitable relief

Holding

Yes; equity aids the vigilant, not the indolent

Reasoning

Although not necessary given the failure of the first Giella principle, the court observed that the allocation process commenced in 2016 or 2017 yet the suit was only filed in April 2019 without explanation for the delay. It held that even had the formal requirements been met, it would not have exercised discretion in the Plaintiffs' favour.

p. 3
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Who bears costs of the application

Holding

The Defendant, as the successful party

Reasoning

Relying on section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to depart from the general rule that costs follow the event and awarded the Defendant the costs of the application.

p. 3

Legal principles established

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  • Costs follow the event under section 27 of the Civil Procedure Act and a successful party should ordinarily be awarded costs unless the court directs otherwise
  • A prima facie case is more than an arguable case
  • An applicant for an equitable remedy must move the court expeditiously

Court orders

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  1. 1.The Plaintiffs' notice of motion dated 4th April, 2019 is dismissed in its entirety
  2. 2.The Defendant is awarded costs of the application

Authorities

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Legislation

  • Companies Act (Cap. 486)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 27
  • Civil Procedure Rules, 2010Order 40 Rules 1 & 2

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao v First American Bank of Kenya
    [2013] KLR 125
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and Order 40 Rules 1 & 2 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Ngugi Kaguthi & 3 others v New Gatundu Mixed Farmers Co Ltd [2021] KEELC 4237 (KLR)", Case Analysis (2021). Plaintiffs' notice of motion dated 4th April, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4237/eng@2021-02-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.